By the written agreement between the plaintiff and the defendant’s son, the son subscribed “for a Scholarship in the International Correspondence Schools, covering a Course of Correspondence Instruction in Telephone Engineering,” and he promised to “Pay for said Scholarship the sum of” $78.40, in instalments of $5 each, the first instalment to be paid at the time of signing the subscription and the remaining instalments “within each and every period of four weeks hereafter until said price is paid in full.” It was further agreed that in case of default in the payment of any one of said instalments when due and payable the whole of the amount remaining unpaid should thereupon at the option of the plaintiff become due and payable. The contract contained these further provisions: “It is agreed as
The defendant guaranteed “the payment to you [the plaintiff] of the price agreed to be paid for the within-mentioned Scholarship in accordance with the terms of the within subscription.” Both contracts were dated August 22, 1910.
The son pursued his studies under the plaintiff’s instruction for some four months and paid four instalments in addition to that paid when the contract was signed. He then (on or about January 1, 1911) stopped studying and refused to make any further payments. This action on the guaranty was brought on January 5, 1912, to recover the unpaid instalments amounting to $53.40.
The defendant admitted that he signed the contract and that he read it before he signed it. That included the plaintiff’s contract with the son, which by the terms of the contract of guaranty was incorporated into the guaranty contract. Two defences were set up: First, that on or about January 1, 1911, when he was not in default in the payment of the instalments due from him,, the son elected not to go on with the instruction called for by the contract; and, second, that certain misrepresentations were made by the agent of the plaintiff when the contract was signed by the son.
The first defence is in effect based on the assumption that the contract sued on was a contract to pay $5 a month for instruction to be given to the son by the plaintiff until the sum of $78.40 had been paid, or, if that contention be not sound, that under the circumstances we have stated the plaintiff is not entitled to recover the contract price but is entitled to recover damages only for breach of the contract by the son. The latter
It is plain that the contract is not a contract for instruction by the month, to be paid for and furnished until $78.40 should , have been paid. By the terms of the contract between the son and the plaintiff, the son subscribed “for a Scholarship in the International Correspondence Schools, covering a Course of Correspondence Instruction in Telephone Engineering,” to be given until he was qualified to receive a diploma or certificate of proficiency, provided he completed the course within five years from the date of the agreement. That is to say, the son had five years in which to complete the course and the plaintiff was bound to carry on the instruction agreed to be given for that period, or until the son should be qualified to receive a diploma within that period. The payments to be made by the son were to be made in sixteen instalments (fifteen of which were for the sum of $5 each and the sixteenth for the sum of $3.40), and these instalments were to be paid every four weeks, beginning with the date of the signing of the contract. The case comes within the first rule of Serjeant Williams in his note to Pordage v. Cole, 1 Saund. 319, 320. That rule is in these words: "If a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money, or other act, is to be performed, an action may be brought for the money, or for not doing such other act before performance; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent.” This again was founded upon the judgment of Chief Justice Holt in Thorp v. Thorp,
In case of independent promises the promisor has to perform his promise and, if he does not get what he pays for, his remedy is by a cross action. In the case at bar the plaintiff has been ready and willing at all times to go on with the son’s instruction, but the son has refused to study. The plaintiff has not been guilty of any breach of its agreement. Under these circumstances the defendant’s contention comes to this: The maker of an independent promise who renounces his right to the thing paid for by him can show that fact in reduction of the sum the promisee is entitled to recover under the independent promise. The case of International Text-Book Co. v. Martin,
If that be so ordinarily, or if ordinarily there is a question as to that, it is disposed of in the case at bar by the terms of the contract between the plaintiff and the son, which was guaranteed by the defendant and by reference made part of the contract of guaranty. It is there expressly provided that “this Subscription, when accepted by you [the plaintiff], shall not be subject to cancellation, and that you will not be required to refund any part of the money paid for said Scholarship,” and “We [the plaintiff] do not refund money paid for Scholarship.”
The direct effect of these two provisions is confined to the return of money paid by the scholar. But indirectly they affect the construction of the contract. If money paid for the “Scholarship” is not to be returned under any circumstances, it is plain that as matter of construction the contract between the plaintiff and the son was a contract by which the son bought a “scholarship,” that is to say a right to be instructed in telephone engineering for a period of five years or until he became qualified to receive a diploma before the expiration of that time. He was not bound to study at all if he did not wish to. On the other hand
The defendant has placed great reliance on International Text-Book Co. v. Schulte,
For these reasons we are of opinion that the exceptions taken to the refusal to give the fourth and fifth rulings asked for must
The other defence relied on is that the defendant was induced to sign the contract by false and fraudulent misrepresentations made by the plaintiff.
The defendant offered to prove that before he signed the contract he asked the plaintiff’s agent this question: “'Suppose my son loses his position and gets another position in another trade so that the lessons in the old trade will be of no benefit to him, must he continue taking lessons in the old trade which will be of no benefit to him, and must I pay for them if he does not?’ And the agent answered, 'No. This contract is like an insurance policy. It lapses when you stop. But while you are not required to make any further payment, you will not get your money back,’ ” and that in confirmation of this statement the agent pointed to the provision in capitals at the bottom of the contract: “We do not refund money paid for Scholarship.” The defendant offered to prove that he relied upon this statement, and relying upon it was induced to sign the guaranty. This evidence was excluded and an exception was taken to its exclusion.
There is a provision at the top of the contract signed by the son: “Do not sign this Subscription without reading it. It is subject to acceptance by the Company at Scranton, Pa., and Agents are not authorized to change its conditions.” As we have already said, the plaintiff’s contract with the son was by reference made part of the contract with the defendant. The contract signed by the defendant is in these words: “I hereby guarantee the payment to you of the price agreed to be paid for the within mentioned Scholarship in accordance with the terms of the within subscription.” The provision of the contract with the son that agents were not authorized to change the conditions of the printed blank was binding on him (see for example Cannon v. Burrell,
The case at bar is one of the few exceptions to the general rule (as to which see Leary v. William G. Webber Co.
Exceptions overruled.
Notes
“4. Although the performance of the contract oh the part of the plaintiff was prevented by the refusal to perform on the part of Walter G. Martin, subscriber, yet the plaintiff is not entitled to the entire contract price less the amount paid, but only to the amount of damages caused by the breach of contract on the part of the subscriber, Walter G. Martin.
“5. By the terms of the written agreement, the plaintiff had to make expenditures for stamps, typewriting, corrections on papers, etc. The facts as to these expenditures are especially within the knowledge of the plaintiff, but as the plaintiff has not offered the necessary evidence to show what these expenses will amount to, it will be impossible for you to fix the damages and therefore you will find for the defendant.”